EXHIBIT 10.1
CHART INDUSTRIES, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and
entered into effective as of the 1st day of August, 2002 by and between CHART
INDUSTRIES, INC., a Delaware corporation (the "Corporation"), and ______________
("Indemnitee"), a Director and/or Officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract
as Directors and/or Officers the most capable persons available such as
Indemnitee; and
WHEREAS, the prevalence of corporate litigation subjects
directors and officers to expensive litigation risks and it is the policy of the
Corporation to indemnify its Directors and/or Officers so as to provide them
with the maximum possible protection permitted by law; and
WHEREAS, in addition, because the statutory indemnification
provisions of the Delaware General Corporation Law (the "DGCL") expressly
provide that such statutory indemnification provisions are non-exclusive, it is
the policy of the Corporation to indemnify its Directors and Officers who, on
behalf of the Corporation, have entered into settlements of derivative suits
provided they have not breached the applicable statutory standard of conduct;
and
WHEREAS, Indemnitee does not regard the protection available
under the Corporation's Certificate of Incorporation (the "Certificate"),
By-laws (the "By-laws"), and insurance, if any, as adequate in the present
circumstances, and considers it necessary and desirable to his or her service as
a Director and/or Officer to have adequate protection, and the Corporation
desires to provide such protection to induce Indemnitee to serve in such
capacity; and
WHEREAS, the DGCL provides that indemnification of directors and
officers of a corporation may be authorized by agreement, and thereby
contemplates that contracts of this nature may be entered into between the
Corporation and Indemnitee.
NOW, THEREFORE, for good and valuable consideration, the adequacy
of which is hereby acknowledged, the Corporation and Indemnitee do hereby agree
as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue
to serve as a Director and/or Officer of the Corporation for so long as he or
she is duly elected or appointed or until such time as he or she tenders his or
her resignation in writing or is otherwise terminated or properly removed from
office.
The Corporation expressly confirms and agrees that (i) it has
entered into this agreement and assumed the obligations imposed on the
Corporation hereby in order to induce Indemnitee to continue to serve as a
Director and/or Officer of the Corporation and (ii) the
obligations imposed on the Corporation hereby cover service by Indemnitee during
and after the period with respect to Indemnitee's service on the Board of
Directors, or as an Officer, of the Corporation, including, specifically, the
period prior to the date of this Agreement. The Corporation acknowledges that
Indemnitee is relying upon this Agreement in continuing in his or her capacity
as a Director and/or Officer of the Corporation.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending, or completed action, suit, arbitration or proceeding, whether
brought by or in the right of the Corporation or otherwise and whether
of a civil, criminal, administrative or investigative nature, in which
Indemnitee may be or may have been involved as a party or otherwise, by
reason of the fact that Indemnitee is or was a Director and/or Officer
of the Corporation or any subsidiary of the Corporation, by reason of
any action taken by Indemnitee or of any inaction on his or her part
while acting as such a Director and/or Officer, or by reason of the
fact that he or she is or was serving at the request of the Corporation
as a director, officer, member or manager, partner, trustee, employee,
agent, or fiduciary of another corporation (domestic or foreign,
nonprofit or for profit), limited liability company, partnership, joint
venture, trust or other enterprise; in each case whether before or
after the date of this Agreement and whether or not he or she is acting
or serving in any such capacity at the time any liability or expense is
incurred for which indemnification or reimbursement can be provided
under this Agreement.
(b) The term "Expenses" shall include, without limitation,
expenses of investigations, judicial or administrative proceedings or
appeals, attorneys' fees and disbursements and any expenses of
establishing a right to indemnification under Paragraph 8 of this
Agreement, but shall not include the amount of judgments, fines or
penalties against or settlements paid by Indemnitee.
(c) References to "other enterprise" shall include, without
limitation, employee benefit plans; references to "fines" shall
include, without limitation, any excise tax assessed with respect to
any employee benefit plan; references to "serving at the request of the
Corporation" shall include, without limitation, any service as a
Director and/or Officer of the Corporation which imposes duties on, or
involves services by, such Director and/or Officer with respect to an
employee benefit plan, its participants or beneficiaries; and a person
who acted in good faith and in a manner he or she reasonably believed
to be in the best interests of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in
this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Paragraph 3 if
Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor) by reason of the fact that
Indemnitee is or was a Director and/or Officer of the Corporation or a
subsidiary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member or manager, partner, trustee,
employee, agent, or fiduciary of another corporation
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(domestic or foreign, nonprofit or for profit), limited liability company,
partnership, joint venture, trust or other enterprise, in each case whether
before or after the date of this Agreement, against all Expenses, judgments,
settlements, fines and penalties, actually and reasonably incurred by Indemnitee
in connection with the defense or settlement of such Proceeding, but only if
Indemnitee acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. The termination of any such Proceeding by
judgment, order of court, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and
with respect to any criminal proceeding, that such person had reasonable cause
to believe that his or her conduct was unlawful.
4. Indemnity for Expenses in Proceedings by or in the Right of
the Corporation. The Corporation shall indemnify Indemnitee in accordance with
the provisions of this Paragraph 4 if Indemnitee is a party to or threatened to
be made a party to any Proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a Director and/or Officer of the Corporation or a subsidiary of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
member or manager, partner, trustee, employee, agent, or fiduciary of another
corporation (domestic or foreign, nonprofit or for profit), limited liability
company, partnership, joint venture, trust or other enterprise, in each case
whether before or after the date of this Agreement, against all Expenses
actually and reasonably incurred by Indemnitee in connection with the defense of
such Proceeding, but only if he or she acted in good faith and in a manner which
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation, except that no indemnification for Expenses shall be made under
this Paragraph 4 in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged by court order or judgment to be liable to the
Corporation, unless and only to the extent that any court in which such
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such expenses as
such court shall deem proper.
5. Indemnity for Amounts Paid in Settlement in Proceedings by
or in the Right of the Corporation. The Corporation shall indemnify Indemnitee
in accordance with the provisions of this Paragraph 5 if Indemnitee is a party
to or threatened to be made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a Director and/or Officer of the Corporation or a
subsidiary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member or manager, partner, trustee,
employee, agent, or fiduciary of another corporation (domestic or foreign,
nonprofit or for profit), limited liability company, partnership, joint venture,
trust or other enterprise, in each case whether before or after the date of this
Agreement, against all amounts actually and reasonably paid in settlement by
Indemnitee in connection with any such Proceeding, but only if he or she acted
in good faith and in a manner which he or she reasonably believed to be in or
not opposed to the best interests of the Corporation.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the
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merits or otherwise in defense of any Proceeding or in defense of any claim,
issue or matter therein, including dismissal without prejudice, Indemnitee shall
be indemnified against all Expenses incurred in connection therewith.
7. Advances of Expenses. Any Expenses incurred by or on behalf
of Indemnitee pursuant to Paragraphs 3 or 4 in any Proceeding shall be paid by
the Corporation in advance upon the written request of Indemnitee if Indemnitee
shall undertake to (a) repay such amount to the extent that it is ultimately
determined that Indemnitee is not entitled to indemnification hereunder, and (b)
reasonably cooperate with the Corporation concerning the action, suit or
proceeding giving rise to the Expenses. Any advances to be made under this
Paragraph 7 shall be paid by the Corporation to Indemnitee within 30 days
following delivery of a written request therefor by Indemnitee to the
Corporation.
8. Procedure. Any indemnification and advances provided for in
Xxxxxxxxx 0, 0, 0 xxx 0 xxxxx xx made no later than 30 days after receipt of the
written request of Indemnitee. If a claim under this Agreement, under any
statute, or under any provision of the Corporation's Certificate or its By-laws
providing for indemnification, is not paid in full by the Corporation within 30
days after a written request for payment thereof has first been received by the
Corporation, Indemnitee may, but need not, at any time thereafter bring an
action against the Corporation to recover the unpaid amount of the claim and,
subject to the other provisions of this Agreement, Indemnitee shall also be
entitled to be paid for the Expenses of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in connection with any action, suit or proceeding in advance
of its final disposition) that Indemnitee has not met the standards of conduct
that make it permissible under applicable law for the Corporation to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Corporation and Indemnitee shall be entitled to receive advance
payments of expenses pursuant to Paragraph 7 hereof unless and until such
defense may be finally adjudicated by court order or judgment from which no
further right of appeal exists. It is the parties' intention that if the
Corporation contests Indemnitee's right to indemnification, the question of
Indemnitee's right to indemnification shall be for the court or arbitrator, as
applicable, to decide, and neither the failure of the Corporation (including its
Board of Directors, any committee or subgroup of the Board of Directors,
independent legal counsel or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable law, nor an
actual determination by the Corporation (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel, or
its stockholders) that Indemnitee has not met such applicable standard of
conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct.
9. Allowance for Compliance with SEC Requirements. Indemnitee
acknowledges that the Securities and Exchange Commission ("SEC") has expressed
the opinion that indemnification of directors and officers from liabilities
under the Securities Act of 1933, as amended (the "Act"), is against public
policy as expressed in the Act and, is therefore, unenforceable. Indemnitee
hereby agrees that it will not be a breach of this Agreement for the Corporation
to undertake with the SEC in connection with the registration for sale of any
stock or other securities of the Corporation from time to time that, in the
event a claim for indemnification against such liabilities (other than the
payment by the Corporation of expenses
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incurred or paid by a director or officer of the Corporation in the successful
defense of any action, suit or proceeding) is asserted in connection with such
stock or other securities being registered, the Corporation will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of competent jurisdiction on the question of whether or not
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue. Indemnitee further
agrees that such submission to a court of competent jurisdiction shall not be a
breach of this Agreement.
10. Indemnification Hereunder Not Exclusive. The
indemnification provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may be entitled under the Certificate or the
By-laws of the Corporation, any agreement, any vote of stockholders or
disinterested directors, the DGCL, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office.
The indemnification under this Agreement for any action taken or
not taken while serving in an indemnified capacity shall continue as to
Indemnitee even though he or she may have ceased to be a Director and/or Officer
and shall inure to the benefit of the heirs, executors and personal
representatives of Indemnitee.
11. Partial Indemnification. If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Corporation for some
claims, issues or matters, but not as to other claims, issues or matters, or for
some or a portion of the Expenses, judgments, fines or penalties actually and
reasonably incurred by Indemnitee or amounts actually and reasonably paid in
settlement by Indemnitee in the investigation, defense, appeal or settlement of
any Proceeding, but not for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such claims, issues or
matters or Expenses, judgments, fines, penalties or amounts paid in settlement
to which Indemnitee is entitled.
12. No Rights of Continued Employment. Nothing contained in
this Agreement is intended to create in Indemnitee any right to continued
employment.
13. Reimbursement to Corporation by Indemnitee; Limitation on
Amounts Paid by Corporation. To the extent Indemnitee has been indemnified by
the Corporation hereunder and later receives payments from any insurance carrier
covering the same Expenses, judgments, fines, penalties or amounts paid in
settlement so indemnified by the Corporation hereunder, Indemnitee shall
immediately reimburse the Corporation hereunder for all such amounts received
from the insurer.
Notwithstanding anything contained herein to the contrary,
Indemnitee shall not be entitled to recover amounts under this Agreement which,
when added to the amount of indemnification payments made to, or on behalf of,
Indemnitee, under the Certificate or By-laws of the Corporation, in the
aggregate exceed the Expenses, judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by Indemnitee ("Excess Amounts"). To
the extent the Corporation has paid Excess Amounts to Indemnitee, Indemnitee
shall be obligated to reimburse the Corporation for such Excess Amounts.
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Notwithstanding anything contained herein to the contrary, the
Corporation shall not be obligated under the terms of this Agreement, to
indemnify Indemnitee:
(a) or advance expenses to Indemnitee with respect to
proceedings or claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except with respect to Proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or
law or otherwise as required under Section 145 of the DGCL, but such
indemnification or advancement of expenses may be provided by the Corporation in
specific cases if the Board of Directors finds it appropriate;
(b) if it is proved by final judgment in a court of law or
other final adjudication to have been based upon or attributable to Indemnitee
in fact having gained any personal profit or advantage to which he or she was
not legally entitled;
(c) for any expenses incurred by Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such proceeding was not made in good faith or was
frivolous;
(d) for a disgorgement of profits made from the purchase and
sale by the Indemnitee of securities pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of any state statutory
law or common law; or
(e) for any judgment, fine or penalty which the Corporation is
prohibited by applicable law from paying as indemnity or for any other reason.
14. Scope. Notwithstanding any other provision of this
Agreement, the Corporation hereby agrees to indemnify Indemnitee to the fullest
extent permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the
Corporation's Certificate, its By-laws, or by statute. In the event of any
change, after the date of this Agreement, in any applicable law, statute, or
rule which expands the right of a Delaware corporation to indemnify a member of
its board of directors or an officer, such change shall be deemed to be within
the purview of Indemnitee's rights and the Corporation's obligations under this
Agreement. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties' rights and obligations
hereunder.
15. Notice to Insurers. If, at the time of the receipt of a
written request of Indemnitee pursuant to Paragraph 8 hereof, the Corporation
has director and officer liability insurance in effect, the Corporation shall
give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The
Corporation shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such policies.
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16. Selection of Counsel. In the event the Corporation shall be
obligated under Paragraphs 3, 4, 5, or 6 hereof to pay the expenses of any
Proceeding against Indemnitee, the Corporation, if appropriate, shall be
entitled to assume the defense of such Proceeding, with counsel approved by
Indemnitee, which approval shall not be unreasonably withheld or delayed, upon
delivery to Indemnitee of written notice of the Corporation's election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Corporation, the Corporation will not be liable
to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same proceeding, provided that: (a) Indemnitee
shall have the right to employ his or her own counsel in any such proceeding at
Indemnitee's expense; and (b) if (i) the employment of counsel by Indemnitee has
been previously authorized by the Corporation, or (ii) the Corporation shall
not, in fact, have employed counsel to assume the defense of such proceeding,
then the fees and expenses of Indemnitee's counsel shall be at the expense of
the Corporation.
17. Arbitration. With the exception of the provisions of
Paragraph 9 hereof, any dispute, controversy or claim between Indemnitee and the
Corporation arising out of or relating to or concerning the provisions of this
Agreement, shall be finally settled by arbitration in the City of Cleveland,
State of Ohio, before a single arbitrator agreeable to both parties. If the
parties cannot agree on a designated arbitrator, arbitration shall proceed in
the City of Cleveland, State of Ohio, before an arbitrator appointed by the
American Arbitration Association (the "AAA"). In either case, the arbitration
proceeding shall commence promptly in accordance with the commercial arbitration
rules of the AAA then in effect and the arbitrator shall be an attorney other
than an attorney who has, or is associated with a firm having associated with it
an attorney who has been retained by or performed services for the Corporation
or Indemnitee at any time during the five years preceding the commencement of
the arbitration. The award shall be rendered in such form that judgment may be
entered thereon in any court having jurisdiction thereof.
18. Continuation of Rights and Obligations. All rights and
obligations of the Corporation and Indemnitee hereunder shall continue in full
force and effect despite the subsequent amendment or modification of the
Corporation's Certificate or By-laws, as such are in effect on the date hereof,
and such rights and obligations shall not be affected by any such amendment or
modification, any resolution of directors or stockholders of the Corporation, or
by any other corporate action which conflicts with or purports to amend, modify,
limit or eliminate any of the rights or obligations of the Corporation and/or
Indemnitee hereunder.
19. Amendment and Modification. This Agreement may only be
amended, modified or supplemented by the written agreement of the Corporation
and Indemnitee.
20. Assignment. This Agreement shall not be assigned by the
Corporation or Indemnitee without the prior written consent of the other party
thereto, except that the Corporation may freely assign its rights and
obligations under this Agreement to any subsidiary for whom Indemnitee is
serving as a director and/or officer thereof; provided, however, that no
permitted assignment shall release the assignor from its obligations hereunder.
Subject to the foregoing, this Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, including, without limitation, any successor
to the Corporation by way of merger, consolidation and/or sale or disposition of
all or substantially all of the capital stock of the Corporation.
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21. Saving Clause. If this Agreement or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines, penalties and amounts paid in settlement with respect to any Proceeding
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated or by any other applicable law.
22. Counterparts. This Agreement may be executed in two or more
fully or partially executed counterparts each of which shall be deemed an
original binding the signer thereof against the other signing parties, but all
counterparts together shall constitute one and the same instrument. Executed
signature pages may be removed from counterpart agreements and attached to one
or more fully executed copies of this Agreement. The parties may execute and
deliver this Agreement by facsimile signature, which shall have the same binding
effect as an original ink signature.
23. Notice and Information. Indemnitee shall, as a condition
precedent to his or her right to be indemnified under this Agreement, give to
the Corporation notice in writing as soon as practicable of any claim made
against him or her for which indemnity will or could be sought under this
Agreement. Notice to the Corporation shall be directed to the Corporation at
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000 Attention: President
(or such other address as the Corporation shall designate in writing to
Indemnitee). Notice shall be deemed received three days after the date
postmarked if sent by prepaid mail, properly addressed. In addition, Indemnitee
shall give the Corporation such information and cooperation as it may reasonably
require within Indemnitee's power.
24. Applicable Law. All matters with respect to this Agreement,
including, without limitation, matters of validity, construction, effect and
performance shall be governed by the internal laws of the State of Delaware
applicable to contracts made and to be performed therein between the residents
thereof (regardless of the laws that might otherwise be applicable under
principles of conflicts of law).
[Signature Page to Follow.]
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IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be duly executed and signed as of the day and year first above
written.
THE CORPORATION:
CHART INDUSTRIES, INC.
By:___________________________________
Xxxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
INDEMNITEE:
______________________________________
Print Name: __________________________
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